Schedule 1 of the Children Act 1989

Applications made under Schedule 1 of the Children Act 1989 are predominately financial claims between unmarried parents.

What orders can the court make under Schedule 1 of the Children Act?

The court has the power under Schedule 1 of the Children Act to make the following orders:

1.       Maintenance payments for the benefit of the children;

2.       Lump sums; and

3.       Settlement or transfer of property.

Maintenance

Ordinarily, child maintenance is dealt with by the Child Maintenance Service (“the CMS”).   They are a government body responsible for calculating how much child maintenance is payable from one parent to another.  They do so using calculations set by the government.

However, once the paying party has a gross annual income in excess of the amount prescribed by the government, currently £156,000, the CMS are unable to take into account any income above this level.

In such cases, the court can award a ‘top-up’ payment in excess of the amount awarded by the CMS.  The court has a much broader discretion under Schedule 1 of the Children Act than the CMS and does not apply a formula to calculate the appropriate amount.  The maintenance is intended to be for the benefit of the child, but this is interpreted broadly where the benefit to the parent also benefits the child.

Court ordered child maintenance can also include an amount paid in order to discharge private school fees under Schedule 1 of the Children Act.

Settlement of property

Unmarried parents cannot make claims against their ex-partner for property for themselves except under TOLATA.  However, provided that there are sufficient funds, a claim can be made by one parent under Schedule 1 of the Children Act for a property to be made available to them for the benefit of the children during their minority.

A house can be purchased for, or transferred to, the parent, where they are permitted to live with the children until they turn 18 or finish full time education.  Once the children reach majority and the trust comes to an end, the property then reverts to the other parent, or is sold with the proceeds being paid to them as may be agreed.

Lump sums

In contrast to divorce proceedings, the availability of lump sums  paid from one party to the other is limited under Schedule 1 of the Children Act.  Typically, this will be in order to discharge debt, including for legal fees, or to purchase a suitable car.

What factors do the court consider?

In deciding whether to exercise its powers under Schedule 1 of the Children Act 1989, and if so in what manner, the court shall have regard to all the circumstances including:

(a) the income, earning capacity, property and other financial resources which the parties have or are likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which the parties have or are likely to have in the foreseeable future;

(c) the financial needs of the child;

(d) the income, earning capacity (if any), property and other financial resources of the child;

(e) any physical or mental disability of the child; and

(f) the manner in which the child was being, or was expected to be, educated or trained.

The court has a broad discretion in deciding how to exercise its powers.

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